Péter and Pál were neighbors in Luxembourg. Péter was member of the Hungarian minority in Romania and arrived in Luxembourg in 2008 to work there at an international company. Due to the favorable new rules, he obtained Hungarian citizenship in 2010. Pál got a one-year contract at the Court of Justice of the European Union as a translator and moved with his family for one year to Luxembourg but retained his Hungarian address. In 2014, the neighbors decided to participate in the upcoming Hungarian parliamentary elections.

In order to exercise their right to vote, they asked the Hungarian authorities for more information. It turned out that Péter could vote only for a national list set by political parties but not for single member constituency candidates because he had no Hungarian address. However, if he registered for the voter list of citizens abroad, he would get the ballots by post and could send it back also by post.

Pál was told that since he had retained an address in Hungary, he had two votes but could cast them only in the territory of Hungary or at an embassy or consulate of the country. Given that the nearest embassy was in Brussels (more than 200 km from Luxembourg), he decided not to participate in the election.

The principle of equal suffrage is ensured not only by the Hungarian constitution but also by the most important international human rights treaties. According to Article 2 (2) of the Hungarian Basic Law, ‘Members of Parliament shall be elected by direct and secret ballot by citizens eligible to vote, on the basis of universal and equal suffrage, in elections which guarantee free expression of voters’ will’. The European Convention of Human Rights ensures the right to free elections in Article 3 of Protocol no. 1. According to Article 14, ‘[t]he enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’

Do these two Hungarian citizens, Péter and Pál, have equal suffrage? The answers of the Hungarian Constitutional Court and the European Court of Human Rights are rather surprising.

We should distinguish between two components: the difference in the number of the votes and the difference in the voting method.

Differential Treatment as to Number of Votes

There have been no cases before the Constitutional Court challenging the rule of the electoral law authorizing two votes for a Hungarian citizen residing in the country (one for a single member constituency candidate and one for a national list) but allowing a citizen residing abroad with no Hungarian address to vote only for the national lists.

We can trace the reason why to the new constitution of 2012, which gave a constitutional grounding for this distinction based on equal suffrage: according to its rule, a law passed by a two-thirds majority may subject the right to vote or its equality to residence in Hungary.[1] The Constitution places this rule beyond the jurisdiction of the Constitutional Court.

Constitutional lawyers suggested that perhaps international human rights mechanisms could provide a legal remedy to what they believe is a rule that violates the principle of equal suffrage.[2] However, their hopes were dashed when, in a very similar case, the European Court of Human Rights held that a Turkish regulation providing that citizens who had lived abroad for more than six months could vote only for the lists presented by the political parties and not for independent candidates did not violate the Convention. The Court noted the legislature’s legitimate concern of limiting the influence of citizens living abroad in parliamentary elections.[3] This reasoning may be also applicable for the Hungarian situation so it is most likely in conformity with the Convention.

Differential Treatment as to Voting Method

However, the other distinction is more problematic. Under the law, those citizens not residing in Hungary are able to cast their vote by post, which is an easier and more comfortable way of voting than traveling to an embassy. This rule discriminates against those who live in Hungary but are not in the territory of the country on election day.

The Constitutional Court has not helped much with this problem. Since there is no deadline for resolving these matters outside of the electoral period, the Court has not yet ruled on the relevant constitutional complaint submitted in October 2013.[4] During the electoral period in spring 2014 there was another constitutional complaint, but it was rejected without an examination on the merits.[5]

The Strasbourg court, on the other hand, also ruled this claim inadmissible.[6] The Court reiterated that States are not obliged to provide the vote for non-residents, and even if they grant them suffrage, States do not need to implement measures to allow expatriates to exercise their suffrage from abroad. This means that, according to the Court, this part of the law does not violate the right to free election ensured by Article 3 Protocol no. 1 of the Convention. However, if the State does provide the right to vote for expatriates, it must do so in a non-discriminatory manner.

In the view of the Court, the difference in voting arrangements constitutes differential treatment but it is rooted in an objective and reasonable justification, so there is no violation of Article 14, either. The Court identified three legitimate reasons supporting the law: (1) the legislature may organize the voting system in a manner it deems rational; (2) an expatriate voter spends certain periods in the country and can arrange to be at home on election day (!) or can go to an embassy or to a consulate to cast a vote; (3) the rule is not a privilege in fact as voters having no address in Hungary are at a disadvantage by having only one vote while the others have two.

The first reason is not clear: why would it be dangerous or difficult to provide postal voting for approximately half a million voters who are temporarily abroad when the state ensures the same possibility for the same number of citizens living abroad?

The second one also seems illogical: why should citizens who have a stronger relationship with the country shoulder a higher burden than those whose links are weaker? And the last one is contrary to previous case-law. In Oran v. Turkey, the Court recognized the State’s demand on limiting the influence of citizens resident abroad. However, in Vámos v. Hungary the reasoning was entirely opposite: it allowed the State to give citizens residing abroad a procedural advantage (the possibility of voting by post) that is on the other side a disadvantage for the voters who have a stronger contact with the country.

In light of this, one should ask whether there is a reasonable ground for the differential treatment.

If the answer is no, which body can protect the right to vote for what amounts to thousands of Hungarians? And what happens when these thousands of voters, who are working abroad and who certainly have an opinion on the political situation in their country, cannot influence the outcome of an election?

[5] Constitutional Court Resolution no. 3048/2014. (III. 13.). The reasoning was tricky: the Constitutional Court rejected the constitutional complaint because the applicant could not ask for postal voting as he had a Hungarian address so he was not affected by the rule. However, he challenged the rule just because it excluded him from the possibility to vote by post.

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